IS THERE ANY WAY OUT?
IN the second chapter of this book, I undertook to give an account of
the state of mind which the enactment of the Eighteenth Amendment has
created, and which is at the bottom of that contempt for the law whose
widespread prevalence among the best elements of our population is
acknowledged alike by prohibitionists and anti-prohibitionists.
"People feel in their hearts," I said, "that they are confronted with
no other choice but that of either submitting to the full rigor of
Prohibition, of trying to procure a law which nullifies the
Constitution, or of expressing their resentment against an outrage on
the first principles of the Constitution by contemptuous disregard of
the law." It is a deplorable choice of evils; a state of things which
it is hardly too much to call appalling in its potentialities of civic
demoralization.
And one who realizes the gravity of the injury that a long continuance
of this situation will inevitably inflict upon our institutions and
our national character must ask whether there is any practical
possibility of escape from it. The right means, and the only entirely
satisfactory means, of escape from it is through the undoing of the
error which brought it about--that is, through the repeal of the
Eighteenth Amendment. Towards that end many earnest and patriotic
citizens are working; but of course they realize the stupendous
difficulty of the task they have undertaken. As a rule, these men,
while working for the distant goal of repeal of the Amendment, are
seeking to substitute for the Volstead act a law which will permit the
manufacture and sale of beer and light wines; a plan which, as I have
elsewhere stated, while by no means free from grave objection--for it
is clearly not in keeping with the intent of the Eighteenth
Amendment--would, in my judgment, be an improvement on the present
state of things. But it is not pleasant to contemplate a situation in
which, to avoid something still worse, the national legislature is
driven to the deliberate enactment of a law that flies in the face of
a mandate of the Constitution. A possible plan exists, however, which
is not open to this objection, and yet the execution of which would
not present such terrific difficulty as would the proposal of a simple
repeal of the Eighteenth Amendment. That Amendment imbeds Prohibition
in the organic law of the country, and thus not only imposes it upon
the individual States regardless of what their desires may be, but
takes away from the nation itself the right to legislate upon the
subject by the ordinary processes of law-making. Now an Amendment
repealing the Eighteenth Amendment but at the same time conferring
upon Congress the power to make laws concerning the manufacture, sale
and transportation of intoxicating liquors, would make it possible for
Congress to pass a Volstead act, or a beer-and-wine act, or no Liquor
act at all, just as its own judgment or desire might dictate. It would
give the Federal Government a power which I think it would be far more
wholesome to reserve to the States; but it would get rid of the worst
part of the Eighteenth Amendment. And it would have, I think, an
incomparably more favorable reception, from the start, than would a
proposal of simple repeal. For the public could readily be brought to
see the reasonableness of giving the nation a chance, through its
representatives at Washington, to express its will on the subject from
time to time, and the unreasonableness of binding generation after
generation to helpless submission. The plea of majority rule is always
a taking one in this country; and it is rarely that that plea rests on
stronger ground than it would in this instance. The one strong
argument which might be urged against the proposal--namely that such a
provision would make Prohibition a constant issue in national
elections, while the actual incorporation of Prohibition in the
Constitution settles the matter once for all--has been deprived of all
its force by our actual experience. So far from settling the matter
once for all, the Eighteenth Amendment has been a frightful breeder of
unsettlement and contention, which bids fair to continue indefinitely.
I have offered this suggestion for what it may be worth as a practical
proposal; it seems certainly deserving of discussion, and I could not
refrain from putting it forward as a possible means of relief from an
intolerable situation. But I do not wish to wind up on that note. The
right solution--a solution incomparably better than this which I have
suggested on account of its apparently better chance of acceptance--is
the outright repeal of the Eighteenth Amendment. And moreover, the
primary need of this moment is not so much any practical proposal
likely to be quickly realized as the awakening of the public mind to
the fundamental issues of the case --the essential principles of law,
of government, and of individual life which are so flagrantly sinned
against by the Prohibition Amendment.
To the exposition of those fundamental issues this little book has
been almost exclusively confined. It has left untouched a score of
aspects of the question of drink, and of the prohibition of drink,
which it would have been interesting to discuss, and the discussion of
which would, I feel sure, have added to the strength of the argument I
have endeavored to present. But there is an advantage, too, in keeping
to the high points. It is not to a multiplicity of details that one
must trust in a case like this. What is needed above all is a clear
and wholehearted recognition of fundamentals. And I do not believe
that the American people have got so far away from their fundamentals
that such recognition will be denied when the case is clearly put
before them. There is one and only one thing that could justify such a
violation of liberty and of the cardinal principles of rational
government as is embodied in the Eighteenth Amendment. In the face of
desperate necessity, there may be justification for the most desperate
remedy.
But so far from this being a case of desperate necessity, nothing is
more unanimously acknowledged by all except those who labor under an
obsession, than that the evil of drink has been steadily diminishing.
Not only during the period of Prohibition agitation, but for many
decades before that, drunkenness had been rapidly declining, and both
temperate drinking and total abstinence correspondingly increasing. It
is unnecessary to appeal to statistics. The familiar experience of
every man whose memory runs back twenty, or forty, or sixty years, is
sufficient to put the case beyond question; and every species of
literary and historical record confirms the conclusion. This violent
assault upon liberty, this crude defiance of the most settled
principles of lawmaking and of government, this division of the
country--as it has been well expressed--into the hunters and the
hunted, this sowing of dragons' teeth in the shape of lawlessness and
contempt for law, has not been the dictate of imperious necessity, but
the indulgence of the crude desire of a highly organized but one-idead
minority to impose its standards of conduct upon all of the American
people. To shake off this tyranny is one of the worthiest objects to
which good Americans can devote themselves. To shake it off would mean
not only to regain what has been lost by this particular enactment,
but to forefend the infliction of similar outrages in the future. If
it is allowed to stand, there is no telling in what quarter the next
invasion of liberty will be made by fanatics possessed with the itch
for perfection. I am not thinking of tobacco, or anything of the kind;
twenty years from now, or fifty years from now, it may be religion, or
some other domain of life which at the present moment seems free from
the danger of attack. The time to call a halt is now; and the way to
call a halt is to win back the ground that has already been lost. To
do that will be a splendid victory for all that we used to think of as
American--for liberty, for individuality, for the freedom of each man
to conduct his own life in his own way so long as he does not violate
the rights of others, for the responsibility of each man for the evils
he brings upon himself by the abuse of that freedom. May the day be
not far distant when we shall once more be a nation of sturdy
freemen--not kept from mischief to ourselves by a paternal law
copper-fastened in the Constitution, not watched like children by a
host of guardians and spies and informers, but upstanding Americans
loyally obedient to the Constitution, because living under a
Constitution which a people of manly freemen can wholeheartedly
respect and cherish.
THE END